Witnesses at deposition are prone to suffer from severe memory loss. Luckily, there are some effective restoratives you can use.

When a witness just can’t seem to remember, try one of these techniques:

Request a “guesstimate.” Press the witness for probabilities, or even educated guesses (estimates that have some factual basis, however slight). This is your right as the examiner under the standards of discovery. See CCP §2017.010.

Ask how this will go at trial. Ask how the witness expects to restore his or her memory for trial. If the witness testifies that he or she won’t be able to remember a fact at trial, then you have a basis for impeachment if the witness finds a sudden restoration of memory at trial.

Try to refresh the witness’s recollection. Use documents and other testimony to refresh recollection. Make the witness’s obtuseness embarrassing. Fear of seeming stupid may overcome sham loss of memory.

Sometimes a witness will take a claimed lack of memory a step further by answering in a way that wanders from your question, perhaps in the hopes that you’ll forget about it too. When faced with a witness who’s meandering or being purposely vague, try out some of these phrases to bring them back to your question:

“In an effort to refresh your recollection, let me suggest…”

“I have reason to believe XYZ. Is it true?”

“I would like to clear up one point in your testimony. Is it true that…?”

“I suggest that XYZ is true. I would like to give you an opportunity to correct your prior testimony. Do you wish to do so?”

[Provide detailed fact statement.] “Is that correct?” [This is especially useful in recreating complex events or opinions.] If answer is no, ask: “What have I said that is wrong?”

At trial, great cross-examination depends on preparation, and in civil cases the deposition is the key to preparation. In chapter 9 of CEB’s Effective Direct and Cross-Examination you’ll learn how to get the most out of a deposition if you’re taking one, and how to give the least at a deposition if you’re defending one. And you’ll find everything you need to know about taking and defending depositions in CEB’s California Civil Discovery Practice, chap 6.

2 Responses

This is gold: many young attorneys should read this post and practice it. I am often astonished at attorneys, even experienced ones, who are under the impression that many of these techniques (incl. asking for a guess) are not allowed at deposition.

About the Blog Manager

Other Links

Disclaimer

This blog is not intended to reflect the position of the State Bar of California or of the University of California. The content is provided with the understanding that CEB does not render any legal, accounting, or other professional service. Attorneys using CEBblog™ should research original sources of authority. Any CEB publication cited is not intended to describe the standard of care for attorneys in any community, but rather to be of assistance to attorneys in providing high quality service to their clients and in protecting their own interests. CEBblog™ is hosted by WordPress and is governed by WordPress’ Privacy Policy. Any information transmitted to CEB from or about CEBblog™ is governed by CEB’s Privacy Policy.